Sir Jackquarius Jaquan Lloyd v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 16 2019, 7:00 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sir Jackquarius Jaquan Lloyd, January 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1135
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1611-MR-10
Vaidik, Chief Judge.
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Case Summary
[1] The State charged Sir Jackquarius Jaquan Lloyd with three counts: murder,
felony murder, and Level 3 felony attempted armed robbery. Following a jury
trial, the jury found him guilty on all three counts. Lloyd now appeals, arguing
that the trial court erred in instructing the jury that he was charged with armed
robbery instead of attempted armed robbery and in providing jury-verdict forms
for armed robbery instead of attempted armed robbery. Because there is no
indication in the record that Lloyd or the jury was confused as to the nature of
the charge or that Lloyd was misled as to the theory the State was pursuing, we
do not reverse Lloyd’s conviction on Count III. However, we remand this case
so that the trial court can amend the sentencing order to reflect that Lloyd was
convicted of Level 3 felony attempted armed robbery.
Facts and Procedural History
[2] For his role in the October 2016 shooting death of Tyler Hurtle in South Bend,
the State charged Lloyd with three counts: Count I: murder, Count II: felony
murder, and Count III: Level 3 felony attempted armed robbery. Appellant’s
App. Vol. III pp. 65-66. The State also sought a sentencing enhancement
pursuant to Indiana Code section 35-50-2-11, which allows for the imposition
of “an additional fixed term of imprisonment” on top of the base sentence for
certain offenses (including a felony that results in death) if the defendant
knowingly or intentionally used a firearm in the commission of the offense.
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[3] In particular, the charging information for Count III, “Attempted Armed
Robbery,” provides:
On or about October 6, 2016 in St. Joseph County, State of
Indiana, Sir Jackquarius JaQuan Lloyd a/k/a Sir Patterson, did
with the intent to commit the crime of Armed Robbery, fire
multiple shots at Tyler Hurtle, which conduct constituted a
substantial step toward the commission of the crime of Armed
Robbery that is knowingly taking property, from another person
or the presence of another person, by using force or by
threatening the use of force, said act being committed while the
defendant was armed with a deadly weapon.
Appellant’s App. Vol. III pp. 65-66 (emphases added). During preliminary
instructions, the trial court told the jury that Lloyd had been charged in Count
III with armed robbery but then read the charging information for Count III,
which set forth the offense of attempted armed robbery:
Count III: On or about October 6, 2016, in St. Joseph County,
State of Indiana, Sir Jackquarius Jaquan Lloyd did with the
intent to commit the crime of Armed Robbery, fire multiple
shots at Tyler Hurtle, which conduct constituted a substantial
step toward the commission of the crime of Armed Robbery,
that is, knowingly taking property from another person or the
presence of another person by using force or threatening the use
of force, said act being committed while the defendant was
armed with a deadly weapon.
Tr. Vol. II pp. 60-61 (emphasis added). The jury was also instructed on the
definition of attempt. Id. at 61 (“A person attempts to commit a crime when,
acting with the culpability required for the commission of the crime, he engages
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in conduct that constitutes a substantial step toward the commission of the
crime.”). During opening statement, the State said that Lloyd and others went
to the house where Tyler and others lived for a “weed rip, a robbery for
marijuana.” Id. at 78. However, Tyler was shot right outside the house before
any marijuana was taken, and Lloyd and the others fled in a car.
[4] During closing argument, the State, on multiple occasions, referenced the
offense of attempted armed robbery. For example, the State told the jury that
Lloyd could be found guilty of Count III as a principal or an accessory:
Sir Lloyd knowingly or intentionally took a substantial step
toward the commission of the crime of Robbery. And that’s
important. Because just thinking about it, that doesn’t get you
there. That’s not enough to be convicted of a crime. Just
thinking about it doesn’t get you there. But what does get you
there is when you take a substantial step towards the commission
of that crime. And we allege the substantial step of shooting is in
there. That would be a big step towards the commission of the
crime of Armed Robbery. And he did so while armed with a
deadly weapon clearly. Now, again that’s as a principal.
As an accessory, . . . Sir Lloyd knowingly aided, induced, or
caused another person to commit Attempted Armed Robbery.
And it is attempted because they were so bad at it they didn’t end
up getting anything. So that’s why it’s Attempted Armed
Robbery.
Tr. Vol. V pp. 71-72; see also id. at 80 (“[A]re you firmly convinced the
defendant attempted to commit Armed Robbery? I mean it’s just that
simple.”). During final instructions, the trial court again told the jury that
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Lloyd had been charged in Count III with armed robbery but then instructed
the jury that there were two ways to find him guilty of attempted armed
robbery, as a principal or an accessory:
One, the defendant, Sir Lloyd; two, acting with the culpability
required to commit the crime of Robbery, which is defined as
knowingly or intentionally taking property from another person
or from the presence of another person by using or threatening
the use of force on any person or by putting any person in fear
while armed with a deadly weapon; three, engaged in conduct
which constituted a substantial step toward the commission of
the crime of Robbery; four, by shooting multiple times at Tyler
Hurtle.
Or, one, the defendant Sir Lloyd; two, acting with the
culpability required to commit the crime of Robbery which is
defined as knowingly or intentionally taking property from
another person or from the presence of another person by using
or threatening the use of force or by putting the person in fear
while armed with a deadly weapon; three, aided, induced, or
caused; four, another person to commit the offense of Attempted
Robbery and whose conduct constituted a substantial step
toward the commission of the crime of Robbery; five, by
shooting multiple times at Tyler Hurtle.
Id. at 121-22 (emphases added); see also Appellant’s App. Vol. II p. 111 (written
jury instruction). The court then told the jury that if the State failed to prove
each of the elements of either set of circumstances beyond a reasonable doubt,
the jury must find him not guilty of armed robbery as charged in Count III. Tr.
Vol. V p. 122; Appellant’s App. Vol. II p. 112 (written jury instruction).
However, if the State proved each of the elements of either set of circumstances
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beyond a reasonable doubt, the jury may find him guilty of attempted armed
robbery as charged in Count III. Tr. Vol. V p. 122; Appellant’s App. Vol. II p.
112 (written jury instruction). The court again instructed the jury on the
definition of attempt. Tr. Vol. V p. 124; Appellant’s App. Vol. II p. 114
(written jury instruction).
[5] Finally, the court read to the jury the two possible verdict forms for Count III:
“Guilty of Count III: Armed Robbery” or “Not Guilty of Count III: Armed
Robbery.” Tr. Vol. V pp. 130-31; Appellant’s App. Vol. II pp. 81, 85 (written
verdict forms).
[6] Following deliberations, the jury returned guilty verdict forms for Counts I-III.
The jury also found that Lloyd was guilty of the firearm enhancement. At
sentencing, the trial court called Count III “attempted robbery.” Tr. Vol. V pp.
183 (“On the Attempted Robbery, I considered the fact that this was not your
first robbery.”), 184 (“Because the reality is as you saw on October 6th that
your attempted robbery was failing, you had options. You could have walked
away. And instead you very deliberately chose to end a man’s life.”). The
court merged Count II into Count I and sentenced Lloyd to sixty years on
Count I, enhanced by fifteen years for the firearm enhancement. The court
then sentenced Lloyd to a consecutive term of twelve years on Count III, for an
aggregate term of eighty-seven years. The court issued a “Judgment of
Conviction & Sentencing Order,” which provides that Lloyd was convicted of
“Count III: Robbery, a Level 3 Felony.” Appellant’s App. Vol. II p. 21.
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[7] Lloyd now appeals his conviction on Count III only.
Discussion and Decision
[8] Lloyd contends that the trial court erred in instructing the jury that he was
charged with armed robbery instead of attempted armed robbery and in
providing jury-verdict forms for armed robbery instead of attempted armed
robbery. He asks us to reverse his conviction on Count III and “remand for a
new determination.” Appellant’s Br. p. 17.
[9] “It is a denial of due process of law to convict an accused of a charge not made.
Where instructions are given or a verdict is rendered on a particular offense
which is not the same as the offense charged reversal usually is warranted.”
Maynard v. State, 508 N.E.2d 1346, 1351 (Ind. Ct. App. 1987) (citations
omitted), reh’g denied, trans. denied. “However, an erroneous judgment of
conviction of this type does not always require reversal. ‘Where the defendant
has not been misled and it is evident that the issues joined under the charging
information have been determined, a simple correction of the judgment, rather
than reversal, is the appropriate remedy.’” Id. (quoting McFarland v. State, 179
Ind. App. 143, 384 N.E.2d 1104, 1109-10 (1979)).
[10] We begin by noting that Lloyd had the opportunity to review the jury
instructions and verdict forms but raised no objections. See Tr. Vol. IV pp. 205-
13 (final-instructions conference); Tr. Vol. V pp. 130-31 (reading of verdict
forms). Had he done so, the trial court could have easily corrected these
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mistakes. While this failure typically waives the issue for review on appeal,
Lloyd argues fundamental error.
[11] Fundamental error is an extremely narrow exception to the waiver rule where
the defendant faces the heavy burden of showing that the alleged errors are so
prejudicial to the defendant’s rights as to make a fair trial impossible. Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014), reh’g denied. Stated another way, to prevail
under our fundamental-error analysis, the defendant must show that, “under
the circumstances, the trial judge erred in not sua sponte raising the issue
because [the] alleged errors (a) constitute clearly blatant violations of basic and
elementary principles of due process and (b) present an undeniable and
substantial potential for harm.” Id. (quotations omitted).
[12] We find that McFarland is instructive here. In McFarland, the defendant was
charged with attempted armed robbery; however, the jury returned a verdict
form finding that the defendant was guilty of armed robbery. We held that
reversal of the conviction was not required and instead remanded for correction
of the judgment to conform to the charge of attempted armed robbery.
McFarland, 384 N.E.2d at 1110. We reasoned that the defendant could not
have been misled in his defense because the State did not introduce evidence of
criminal activity unrelated to the charged offense. Id. Moreover, the charging
information, which alleged attempted armed robbery, was read to the jury, and
the jury instruction defining the elements of the crime properly followed the
language of the statute and used the words “committed or attempted to
commit” interchangeably. Id. Accordingly, we were “assured” that the jury
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made a determination with regard to the offense alleged in the charging
information. Id.
[13] The same can be said here. Lloyd argues that he and the jury were confused as
to what he was charged with in Count III—armed robbery or attempted armed
robbery. However, the charging information—which set forth the charged
offense as attempted armed robbery—was read to the jury. In addition, the jury
instructions set forth the elements for attempted armed robbery. See
Appellant’s App. Vol. II pp. 111-12. Finally, during closing argument, the State
referenced, on multiple occasions, the offense of attempted armed robbery.
Thus, the jury was told that it had to find that Lloyd attempted to commit
armed robbery in order to convict him on Count III. And, as the State claims
on appeal, “at no point” was evidence presented that “[Lloyd], or his
accomplices, ever took anything from Tyler to complete the robbery.”
Appellee’s Br. p. 19. The trial court recognized as much during sentencing. See
Tr. Vol. V p. 184. Although Lloyd argues that he was misled as to what theory
the State was pursuing, the State made clear during closing argument that it was
alleging two theories—principal and accessory—for each of the three counts
and that the jury could “pick” which theory it wanted. Id. at 68. Accordingly,
there is no indication in the record that the jury or Lloyd was confused as to the
nature of the charge or that Lloyd was misled as to what theory the State was
pursuing. We find that, as in McFarland, a simple correction of the judgment,
rather than reversal, is the appropriate remedy here. We therefore remand this
case to the trial court with instructions to amend the “Judgment of Conviction
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& Sentencing Order” to reflect that Lloyd was convicted of Level 3 felony
attempted armed robbery.1
[14] Reversed and remanded.
Mathias, J., and Crone, J., concur.
1
There is no completed abstract of judgment in the record on appeal. If one was issued, the trial court
should make sure that it reflects the proper conviction on Count III.
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